Post Net Neutrality

FCC Gives Broadband Providers Carte Blanche to Ignore Public Interest

October 27, 2020 , ,

Right around the time that Malcolm in the Middle started airing, I discovered the concept of emancipation. My rebellious teen self dreamed of calling it quits from my parents. Fortunately, my parents firmly squashed this notion, and I was left with the consolation prize of blaring the chorus to the show’s theme song — “you’re not the boss of me” — at top volume while sulking in my room. 

Unlike my parents, who insisted on continuing to enforce the rules that kept me safe and on a path to successful adulthood, the Federal Communications Commission chose the alternate path and signed away its rights to oversee broadband by reclassifying it from a Title II telecommunications service to an unregulated information service. However, broadband providers, much like my teenage self, need oversight, rules, and regulation. Without the authority to regulate broadband, the FCC has essentially given broadband providers carte blanche to behave badly at the expense of the public.

In 2018, the FCC issued its Restoring Internet Freedom Order (RIFO). The RIFO repealed the net neutrality rules passed under the Obama administration by reclassifying broadband as an unregulated information service, as opposed to a telecommunications service subject to clear FCC authority under Title II of the Communications Act. This is important not just because of net neutrality, but because the scope of FCC authority affects its ability to regulate broadband in any number of ways.

Broadband Providers Need Oversight

The problem is that classifying broadband as an unregulated information service leaves the public with very little protection when broadband providers use their freedom to behave badly. Broadband providers can now act as self serving as the typical rebellious teen. At the end of the day, their profit margin matters much more than the public interest. It’s basic capitalism.

After the FCC abdicated its authority over broadband, the D.C. Circuit court told the FCC it needed to consider the impact such a decision would have on public safety, pole attachments, and broadband eligibility for Universal Service Funds. Failing to recognize that profits and the public interest do not always align, the FCC’s remand Order reaffirmed its earlier decision to sign away the FCC’s right to regulate broadband

With regard to public safety, the FCC claims that a non-regulatory approach to broadband “spurs investment in a robust network and innovative services.” The Commission goes further and claims that “even if there were some adverse impacts on public safety the overwhelming benefit…would still outweigh any potential harms.”

This reasoning is not just naive — it willfully ignores reality.

Contrary to the FCC’s assertions, broadband providers are already engaging in harmful behavior and using their new-found freedom to de-invest in networks that no longer serve their bottom line. For example, AT&T recently announced that it is phasing out its broadband DSL services without committing to replacing them with a wireline alternative outside of its “fiber footprint.” This move could leave hundreds of thousands without a reliable wireline connection to the internet during a global pandemic.

In a memo AT&T distributed to its technical management, AT&T advised technicians to remove copper lines attached to DSL unless the customer has plain old telephone service (POTS) and refuses to give up POTS. Notably, POTS is a Title II legacy service that is subject to the FCC’s Tech Transition Rules which would require AT&T to replace its copper line with a reliable alternative. These Title II regulations provide some oversight and protection for consumers, helping prevent the digital divide from growing. In contrast, DSL on its own is now an unregulated information service that the Commission has vacated its authority over. 

According to AT&T, 469,000 homes still subscribe to DSL but it’s unclear how many of these lie outside of AT&T’s proposed fiber network. Without further investigation it is impossible to know just how many of these customers will lose their wireline access to the internet once AT&T pulls the plug on DSL. Based on Commission data, this move will most likely impact rural and underserved communities the most since they fall outside of AT&T’s fiber footprint, widening the digital divide in America even further. 

Broadband providers are essentially living the reality of my rebellious teen fantasy: unfettered opportunity to do what serves their own interests regardless of the consequences to others. And, according to Chairman Pai’s FCC, the agency is powerless to do anything about it.


About Kathleen Burke

Kathleen Burke is a Policy Counsel at Public Knowledge, working on telecom and copyright. Kathleen received her J.D. from Case Western Reserve University School of Law where she served as the Editor-in-Chief of the Journal of Law, Technology, and the Internet and earned the CALI awards in Property and Copyright Law. In 2020, Kathleen served as a Public Knowledge Policy Extern. In 2019, she worked as a Google Policy Fellow at TechFreedom and was accepted into the Internet Law and Policy Foundry's third class of Fellows. Prior to law school, Kathleen worked as the Director of Education and Outreach at Fayette Alliance, an organization focused on achieving sustainable growth in Lexington, KY. In that role, she discovered her passion for technology policy while working on rural broadband access. She also ran her own wedding photography business. Kathleen recently orchestrated an interactive performance art on Twitter during quarantine titled The Zoom School of Law Memes and Trolling Clinic’s Law of Memes and Trolling Seminar (#trollseminar, #memelaw). Her interests also include collecting all the National Parks Passport stamps and canning jam.